State, Department of Health & Social Services v. Michelle P.

         Appeal from the Superior Court of the State of Alaska, No. 4BE-14-00081 CN Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge.

          Laura Fox, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellant and Cross-Appellee.

          William T. Montgomery, Assistant Public Advocate, Bethel, and Richard K. Allen, Public Advocate, Anchorage, for Appellees and Cross-Appellant.

          No appearance by Native Village of Tuluksak.

          No appearance by Guardian Ad Litem.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         A court must have jurisdiction to rule on a case. The superior court dismissed a Child in Need of Aid (CINA) petition because it believed it no longer had jurisdiction over the case after the disposition order granting the Office of Children's Services (OCS) custody of the child had expired. We hold that jurisdiction over a CINA case is distinct from the grant of custody or supervision to OCS in a disposition order and that it derives from the child's status as a child in need of aid. We therefore reverse the superior court's order dismissing the petition and remand for further proceedings.

         Before dismissing the CINA petition, the superior court entered removal findings based only on a motion filed by OCS. This was error because the removal order was not supported by sufficient evidence and did not comply with the requirements of the Indian Child Welfare Act (ICWA).^[1] We therefore reverse the removal findings and remand for further proceedings consistent with this opinion.

         II. FACTS AND PROCEEDINGS

         A. Emergency Petition And Temporary Custody Order

         Michelle P. and Morris L. are the parents of Natalie, who was born in April 2014.^[2] Natalie is an Indian child as defined by ICWA.^[3] On October 31, 2014, OCS filed an emergency petition to adjudicate Natalie a child in need of aid and to grant it temporary custody. The petition stated that OCS had taken emergency custody of Natalie the day before and alleged that Natalie was a child in need of aid under AS 47.10.011(2) (incarceration), (6) (physical harm), (9) (neglect), and (10) (substance abuse).

         After a temporary custody hearing a magistrate judge found probable cause to believe Natalie faced an imminent risk of physical damage or harm if returned to Michelle. Morris was incarcerated at Palmer Correctional Facility at the time. The magistrate judge further found that Natalie had been neglected, and that OCS had made reasonable and active efforts to prevent the breakup of the Indian family. An adjudication hearing was scheduled for March 2015. The superior court adopted the magistrate judge's findings in a December 4 order. Natalie's tribe entered its appearance after the temporary custody hearing.^[4]

         B. The Parents And OCS Stipulate To Adjudication And OCS Supervision

         At the hearing in March 2015 Michelle stipulated to adjudication and disposition (March 2015 stipulation). The stipulation provided that Natalie was a child in need of aid due to neglect and that OCS would retain custody until Michelle completed treatment at a local substance abuse treatment center. On April 17, her projected completion date, OCS would return Natalie to Michelle's physical custody but would have supervision of Natalie for one year. Michelle confirmed that this was her understanding of the agreement. Morris, who was still incarcerated, appeared by telephone before a magistrate judge two days later and agreed to the stipulation. A permanency hearing was scheduled for October 1, 2015.

         C. Natalie's Second Removal From Her Parents' Home And Modification Of The Disposition From OCS Supervision To OCS Custody

         At the October 1 hearing OCS notified the court that Natalie had been successfully returned to Michelle and that it intended to file a motion to dismiss by the following Monday. The motion was never filed. Instead, a month later OCS filed a "Motion for Removal Findings" pursuant to CINA Rule 17(d)(2), stating that Natalie had been removed from her parents' home on October 3 because Michelle had relapsed and Morris had been arrested for domestic violence. OCS asked that the court make findings that the removal from October 3, 2015 onward was warranted because: (1) continued placement in the home was contrary to Natalie's welfare; (2) placement with her parents would likely result in serious physical or emotional damage to Natalie; (3) there was good cause to deviate from ICWA's foster care placement preferences; and (4) OCS had made active and reasonable efforts to prevent the breakup of the Indian family. OCS's motion was supported by an affidavit from a social worker. No party responded to OCS's motion.

          On November 17 the court entered findings authorizing removal as proposed by OCS (November 2015 removal order). The order included a finding that there was "clear and convincing evidence, including the testimony of qualified expert witnesses, that the custody of the child by the parents [was] likely to result in serious emotional or physical damage to the child[]."

         On February 29 Morris filed a "Motion to Return Child and/or Request for Hearing on the Return of the Child." He argued that Natalie must be returned to her parents because the November 2015 removal order was unlawful and that the only way for OCS to assume custody of Natalie was by requesting a temporary custody hearing or removal hearing under CINA Rule 10. Alternatively, he requested a CINA Rule 19.1(c) review hearing, asserting that his recent release from incarceration constituted a change in circumstances. Based on Morris's motion, the court eventually scheduled a CINA Rule 19.1(c) review hearing for April 22.

         D. Litigation Of Morris's Motion To Dismiss

         On March 25 OCS filed a petition to extend its custody of Natalie for one year, pursuant to AS 47.10.080(c)(1)(A). One day before the scheduled CINA Rule 19.1 (c) review hearing Morris filed an expedited motion to dismiss. He argued that the existing disposition order had expired on March 19, 2016, and OCS's petition to extend custody had not been filed until March 25. Morris argued that the court no longer had jurisdiction over Natalie because the petition to extend custody was untimely.^[5]OCS's opposition argued that the court's November 2015 removal order voided the March 2015 stipulation's expiration date because the November 2015 removal order was actually a temporary custody order of an indefinite duration. Natalie's tribe joined Morris's motion to dismiss. In addition to restating or otherwise joining Morris's arguments, the tribe argued that OCS's "failure to strictly comply with the requirements of [CINA Rule] 19.2(a) mean[t] that the untimely-filed petition for an extension of custody [was] void and unenforceable." On May 19 the court denied the motion to dismiss. The court reasoned that, due to Morris's requested continuances of earlier hearings and the continued litigation regarding removal, the issue of custody was tolled.

         On November 22 the court issued a notice that it was reconsidering, sua sponte, its order denying Morris's motion to dismiss, and it invited the parties to file briefs. On January 3, 2017, the superior court dismissed the case. The court stated that it was reversing "its order of June 14, 2016.^[6] [OCS] did not file pursuant to the rule a petition prior to 30 days before its expiration of March 19, 2016." The court further wrote, "[f]or this reason alone this case is dismissed and the child is ordered to be released from OCS custody."

         F. Second Emergency Petition And Appeal Of Superior Court's Order Dismissing The Case

         The next day OCS filed a new emergency petition to adjudicate Natalie a child in need of aid, ^[7] stating in pertinent part:

On January 3, 2017, the Court entered an order of dismissal after it sua sponte reconsidered a previously entered order denying motion to dismiss filed by the father. At the time of the court's order [Natalie] was placed in licensed foster care ... in [a village]. The parents reside in [another village].... [Natalie] faces imminent risk of physical harm or damage as a result of the Court's order, which releases a . . . child without any arrangements for an adult caregiver to provide for her.

         At the emergency hearing on January 5 OCS argued that the court's order granting Morris's motion to dismiss created the emergency and that there was no requirement that "the harm has to have been perpetrated, necessarily, specifically by the parent." The court disagreed and dismissed the newly filed emergency petition. The court also explained that it had initially denied Morris's motion to dismiss because it believed the extension could be retroactive, but it later determined after additional briefing and review of the case law that it could not retroactively extend a custody order.

         The court then stated that it was "very concerned for [Natalie][and] very concerned because from the history ... the parents aren't doing their share." The court noted its concern for Natalie's safety and remarked that "[i]t is a terrible position to put a three-year-old child in." But the court reasoned that it had no choice except to grant the motion to dismiss, it said, "I can't fit it into the law, or I would. I mean, that's just as simple as that folks, I don't think it's for the good of the child at all."

         OCS appeals the superior court's order of dismissal and the parents have joined in opposing the appeal. Morris brings a cross-appeal of the court's November 2015 removal order; Michelle has not joined his cross-appeal.

         III. STANDARD OF REVIEW

         "[W]e exercise our independent judgment 'when interpreting a civil rule' or statute, "^[8] and interpret statutes "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters."^[9] "We review questions regarding both subject matter jurisdiction and personal jurisdiction de novo, as '[j]urisdictional issues are questions of law subject to [our] independent judgment.' "^[10] When we review an issue de novo it is our duty "to adopt the rule of law that is most persuasive in light of precedent, reason, and policy."^[11]

         As for the issues raised in the cross-appeal, whether a superior court's factual findings comply with ICWA requirements is a question of law, which we review de novo.^[12] "[W]hether substantial evidence supports the court's conclusion that an Indian child is likely to be seriously harmed if returned to his parent is a mixed question of fact and law."^[13] The determination that a child will suffer serious physical or emotional harm if returned to a parent's custody is a factual finding that we review for clear error, but whether qualified expert testimony sufficiently supports this determination is a legal question that we review de novo.^[14] "In CINA cases, we review issues that were not raised in the trial court for plain error."^[15]

         IV. DISCUSSION

         A. It Was Error To Dismiss The Petition Based Upon A Perceived Lack of Jurisdiction.

         1. The superior court's jurisdiction over a child in need of aid is distinct from the custody granted to OCS in a disposition order.

         This case concerns subject matter jurisdiction, which is "the legal authority of a court to hear and decide a particular type of case."^[16] The parents argue that the superior court was correct in concluding that it lacked jurisdiction, or authority, to extend the disposition order giving OCS custody of Natalie because the existing disposition order had expired prior to OCS filing a petition to extend the order. OCS argues that, contrary to the superior court's conclusion in the January 2017 order dismissing the case, jurisdiction is tied to a child's status as a child in need of aid, not the existence of a disposition order granting OCS custody or supervision.

         We take this opportunity to expand on what we first recognized in Erica A. v. State, Department Of Health & Social Services, Division of Family & Youth Services: the superior court's authority in a CINA proceeding is not dependent upon an existing disposition order.^[17] A disposition order confers authority to OCS over a child who has been adjudicated a child in need of ...